Cool Homes, Inc. v. Fairbanks North Star Borough of Equalization

COMPTON, Justice,

dissenting in part.

I dissent from the holding in section C, subsection (2)(d), regarding salvage value. In my view neither the Borough nor this court has satisfactorily answered Cool Homes’ arguments.

The Borough depreciated Cool Homes’ interest in the improvements using a 4 percent depreciation rate over a twenty year period. Thus, the Borough assumed that Cool Homes’ interest would lose 80 percent of its value over the terms of its lease. The remaining 20 percent was attributed to salvage value, that is, the value *1268of the improvements which Cool Homes could recover at the end of the lease.

Cool Homes contends that because of the nature of its contract with the Air Force, any salvage value is inappropriate. In a prior appeal regarding this property, Superior Court Judge James R. Blair made the following finding:

After the twenty-year term is up, the lease is renewable at the government’s option. If the government opts not to renew the lease, Cool Homes’ sole recourse is to remove the buildings within thirty days and restore the land to its prior condition. It is undisputed that the buildings cannot be so removed.1

Cool Homes, Inc. v. Fairbanks North Star Borough, Case No. 4FA-87-1093 Civil (Alaska Super., Dec. 19, 1987). This finding has not been contested.

The court affirms the salvage value figure on the basis of the testimony of Deputy Assessor McManus, which it claims “substantiate[s] the assessment.” I submit that the testimony begs the question, rather than answering it.

McManus’ first quoted testimony, and conclusion, is predicated on a person being willing to pay $.20 on the dollar for a building in salvage value condition. These are the two qualifiers to this conclusion:

[I]f entrepreneur or entrepreneurs or just people that wanted to buy things, if they’d be willing to pay $.20 on the dollar, they’d dismantle and cart them off, but more appropriately that they relocate them as units in place.... We also took a look at homes that were in the salvage value condition, and either need to be completely refurbished, or actually relocated elsewhere and — or, in some cases, dismantled and salvaged, the components of them, and ... we still came up with about a 20 percent value.

(Emphasis added).

This is not evidence that substantiates that the buildings will be in salvageable condition when the land lease expires.

McManus’ next quoted testimony is similarly flawed:

To determine that 20 percent we took a look at Hutchinson Career Center who' has been building, for several years now, homes that they do build, but they’re sitting on — they’re sitting to be relocated.

These are homes that are built to be relocated in the first place.

The Borough looked to Hutchinson Career Center, which constructs buildings to be relocated, in determining the twenty percent salvage value. The Borough concluded that people were willing to pay 50 cents on the dollar for these relocated buildings. The Borough obtained an estimate from Mark Acres confirming that “the cost of relocating these structures and in our mind was that people could safely invest .50 cents on the dollar.” The Borough then discounted the fifty percent to forty percent because of the size of the Cool Homes' project. The Borough further reduced that in half to twenty percent to account for the fact that the buildings would be twenty years old (half of the forty year economic life estimate). Again, this is not evidence that the buildings will be capable of being relocated, or in an otherwise salvageable condition, when the land lease expires.

There is no evidence that moving these buildings will be possible. There is no evidence to take into account any cost of removing buildings which were not eon-*1269structed for relocation. On this record, the improvements will have no value to Cool Homes when the term of the land lease expires.

In the 1989 appeal before the Board, Cool Homes also elicited testimony from Deputy Assessor McManus that the Borough did not consider Judge Blair’s findings that the improvements could not be removed when calculating the salvage value. And although it is possible that the Air Force could change its mind and renew the lease or purchase the buildings, the Borough admitted that it would be improper to base assessments on mere possibilities.2

Cool Homes met its burden of proving that the salvage value, if any exists at all, was assessed erroneously. The Board did not have a reasonable basis to affirm the assessment of the salvage value.3 I would remand this issue to the Board to determine what the rubble would be worth.

Cool Homes also contends that the use of the accelerated depreciation method was improper. The thrust of Cool Homes’ argument is that the accelerated depreciation method does not adequately account for the reversionary interest the government will have in the improvements after the land lease expires. Again, Cool Homes complains that the Borough has not put forward any evidence to justify this method without itself producing facts which cast doubt on it. Its argument keys on the contention that the assessed value bears no relation to the project’s cash flow.

The only evidence before the Board that the Borough was excluding the government’s interest in the improvements from the assessment was from McManus: “We feel we’re doing that, yes, in that accelerated depreciation.” The Borough’s “feeling” that the reversionary interest is excluded is not evidence.

It is possible that over the life of the twenty year lease the reversionary interest will be excluded, but there was no evidence presented that substantiates how this method works. Evidence was presented *1270that in the first year Cool Homes would be taxed on 100% of the value of the improvements, with nothing deducted for the government’s reversionary interest. In the second year 4%, would be deducted, and the next year 8%. No evidence was presented that justifies this method of valuing the reversionary interest.

Cool Homes does not dispute that the Borough may use a reversionary method of tax assessment. “This method begins by valuing property at its fee simple value. This value is then reduced, or discounted, by a factor representing the restrictions on the property. The value is further reduced to remove any value pertaining to the re-versionary interest of the government in the land.” Cool Homes claims a straight-line depreciation to reduce the initial value down to salvage value at the end of the lease period does not exclude the value of the reversionary interest. Cool Homes presented evidence that a straight line depreciation over the life of the lease to salvage value is a “fundamentally wrong” way to account for the governments reversionary interest. The Borough presented no evidence that its method was reasonable. Cool Homes’ experts testified that the income stream approach was the more sound method. I conclude that Cool Homes’ argument is persuasive.

. The finding that the buildings could not be removed in 30 days especially in a salvageable condition is based on the affidavit and testimony of John R. Jones in the 1987 appeal to the Board of Equalization. Jones testified:

It would be like taking a bucket of sticks and taking the bottom one out; they would crumble. ... Even if they could be moved, there is so much utilidor and concrete work in the project, to bring equipment in to even [do] demolition would be really a very impossible thing. We’d spend more time taking the equipment out of the ditches and the holes and some 12-foot deep utilidors for the size of equipment....

. Before the 1989 Board, the deputy assessor testified as follows:

Q: And just for the record, in using the number you’re not in any way making any assumptions about what the government might do as far as renewing the lease, extending the lease, issuing a new lease?
A: No, those assumptions would not be valid; I mean they just don’t have that crystal ball. In the worst case scenario is that they’d be asked to remove those structures, and that’s why we felt the 20 percent salvage was appropriate.

The superior court justified the salvage value because ”[a]lthough Cool Homes may not be able to remove the buildings at the end of the lease, it will benefit from the possible sale of the structures to the government.” Cool Homes, Inc. and Ben Lomond, Inc. v. Fairbanks North Star Borough, Board of Equalization, Case No. 4FA-89-1078 (Alaska Super., Nov. 19, 1990). The Borough admitted, however, that such a sale was not a consideration. Rather, the assessor considered that the corporation had to remove and then refurbish, relocate or otherwise salvage the property. However, Judge Blair found that none of these was a realistic possibility.

The Borough’s contradictory contention in its brief that the assessment was performed assuming "the worst case scenario from the owner’s viewpoint — the destruction of the houses and the end of the lease” is not supported by the record. Instead, the deputy assessor testified that the worst case scenario was the “removal” of the structures.

. Cool Homes and amicus curiae Aetna Life Insurance Company also urge the court to direct the Board on remand to further exclude the value of the land improvements beyond the land lease term from the tax. "To the extent that the estimated useful life of any of these items extends beyond the term of the lease, the value attributable to such period must be excluded from the tax since it represents the Government’s ownership interest.” Ben Lomond, 760 P.2d at 512 (quoting Offutt Housing Co. v. County of Sarpy, 351 U.S. 253, 262 n. 1, 76 S.Ct. 814, 820 n. 1, 100 L.Ed. 1151 (1956)). See also Duwamish Warehouse Co. v. Hoppe, 102 Wash.2d 249, 684 P.2d 703, 707 (1984) (reversing a judgment which ignored the reversion of a building to the public long before its useful life expired).

The contract does caution that the government may take possession of the improvements without payment at the end of the land lease. However that is merely one possibility which may happen when the land lease expires. Taking of the housing by the government is still not any more likely than any of the other possibilities like renewal of the lease. Cool Homes urges elsewhere that such possibilities should not be considered. Thus it seems just as improper to deduct the remaining useful life from the tax (a negative salvage value) as it would be to calculate a salvage value.